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. e du/thir dc ir c uit_1997/157Filed July 14, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-3594

CARMEN L. ROBINSON; NATHANIEL HAWTHORNE, JR., Wife and Husband,

Appellants

v.

CITY OF PITTSBURGH, EARL BUFORD, CRAIG B. EDWARDS; JAMES N. DICKERSON

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 94-1378)

Argued: January 6, 1997

Before: GREENBERG, COWEN, and ALITO, Circuit Judges

(Opinion Filed: July 14, 1997)

SAMUEL J. CORDES (Argued) OGG, JONES, CORDES & IGNELZI, L.L.P.
245 Fort Pitt Boulevard Pittsburgh, PA 15222

Attorney for AppellantsJACQUELINE R. MORROW

CITY SOLICITOR

JOHN G. SHORALL (Argued) Assistant City Solicitor
SUSAN E. MALIE Assistant City Solicitor City of Pittsburgh Department of Law 313 City-County Building Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge :

Appellants Carmen Robinson and Nathaniel Hawthorne, Jr. worked as police officers for appellee City of Pittsburgh ("the City"). Robinson alleges that she was sexuall y harassed by appellee James Dickerson (her superviso r) and that appellees Craig Edwards (an assistant police c hief) and Earl Buford (the chief of police) knew of the haras sment but failed to take action to stop it. Robinson asserted a variety of claims under both federal and state law against Dickerson, Edwards, Buford, and the City. At the cl ose of plaintiffs' case, the district court granted defend ants' motion for judgment as a matter of law on several o f Robinson's claims. The jury returned verdicts for defendants on the claims that remained. In this app eal, plaintiffs challenge the grant of judgment as a mat ter of law, a jury instruction, and certain evidentiary ru lings. We affirm in part, reverse in part, and remand.

I.

Robinson began working as a Pittsburgh police offic er in 1990. Hawthorne, her husband, also worked as a poli ce officer for the City. In January 1992, Robinson was assigned to a drug suppression unit commanded by th en-

2Lieutenant Dickerson. Hawthorne worked in the same unit

until June 1992, and Robinson contends that after h e left to begin a new assignment, Dickerson began sexually harassing her. According to Robinson, the harassmen t included unhooking her bra, snapping her bra strap, touching her hair and ears, telling her "you stink pretty," making comments about the size of her breasts, blow ing her a kiss, asking her out for a drink, touching he r leg under a table, putting his hands around her waist, dropping his keys down the back of her shirt and attempting to retrieve them, and describing the pos ition in which he and Robinson would have sex if they were t o do
so. Robinson testified that she never acceded to an y of Dickerson's sexual advances or reciprocated any of his
sexual remarks and that she made it clear to him th at his
conduct was unwelcome.

In the fall of 1992, Robinson approached Assistant Chief Edwards to inquire about a transfer to the detectiv e bureau (which would have been a promotion). Edwards had no direct supervisory authority over Robinson, but was one of two second-in-command officers who reported directl y to Chief Buford. (App. 89-90; 585-86) Robinson testifi ed that she told Edwards that she thought Dickerson "was hi tting on [her]" and "coming on to [her]." (App. 146-47) S he said
that Edwards advised her to "wait it out" because h e thought that Chief Buford might be leaving soon for another job. Edwards reportedly said that Buford mi ght
take Dickerson with him and that even if Dickerson remained, Buford's departure would allow Edwards to obtain power over Dickerson. (App. 147) Until then, however, Edwards allegedly told Robinson he could n ot do anything about Dickerson because Buford protected h im. (App. 147-48) In addition, according to Robinson, E dwards told her that Buford would not do anything to help her
because Dickerson "had done this before" and Buford had not done anything following that incident. (App. 14 8) Robinson testified that she believed "waiting it ou t" was a
"viable solution" and that she did not tell her hus band about the harassment or do anything else about it a t the time. (App. 149)1

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1. In addition to this request, Robinson sought a t ransfer to the detective bureau on several other occasions, but she never su cceeded in obtaining
such a transfer.

3In May 1993, Robinson wrote a letter to Buford in w hich

she asked to meet with him. According to Robinson, her original draft of the letter, prepared in March or April 1993, stated that Dickerson was "coming on to [her]" and that she thought that this was "the reason for [her] now bad reputation." (App. 168) Robinson recounted that she gave the letter to Edwards to look over and that Edwards told her that she could not send the letter through the chain of command because it was too "specific in detail." Ac cording to Robinson, Edwards recommended that she "just be specific about requesting a meeting." (App. 166-67) The original draft was never introduced in evidence. Th e letter that was actually sent to Buford requested a meetin g in order to discuss "career goals" and "past conflicts " and to "seek guidance with future endeavors." The letter m ade no mention of sexual harassment. Upon receipt of the l etter,
Buford returned it to Robinson with a notation that it needed to be transmitted through the proper chain o f command rather than sent directly to him.

In January 1994, Robinson was detailed to the crimi nal intelligence unit, where her direct supervisor was Sergeant William Bochter and her second-line supervisor was Chief Buford. In this assignment, neither Dickerson nor E dwards possessed any supervisory authority over Robinson. In May 1994, Robinson met with Edwards, told him she was " fed up" with the harassment, and stated her intention t o file a complaint. She testified that Edwards recommended t hat she file a complaint with the Equal Employment Opportunity Commission ("EEOC").

A few weeks later, Robinson filed a complaint with Bochter, who forwarded it to Buford on May 31, 1994 . On June 1, 1994, Robinson filed a complaint with the E EOC alleging that Dickerson had sexually harassed her, and on July 6, 1994, she filed a similar complaint with th e Bureau of Police Office of Professional Standards ("OPS"). OPS's investigation, which was completed in September 199 4, concluded that probable cause existed to substantia te Robinson's claim.2 In October 1994, Robinson stoppe d

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2. The district court did not allow the OPS report itself to be introduced in evidence, but it permitted the investigating off icer, Carla Gedman, to testify as to her conclusions on the ground that th ey were admissions by a party-opponent and thus not hearsay.

4reporting for work, and she has not returned to her job since that time. She was nonetheless promoted to se rgeant in February 1995.

II.

In August 1994, Robinson and Hawthorne filed suit i n district court against the City, Buford, Edwards, a nd Dickerson. Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), Robinson asserted claims ag ainst the City for hostile work environment and quid pro quo sexual harassment and for retaliation, as well as a claim for hostile work environment sexual harassment against Dickerson. Under 42 U.S.C. § 1983, she asserted cla ims, based on alleged violations of the Equal Protection Clause, against all four defendants. She claimed that all f our were responsible for unconstitutional sex-based discrimi nation
and that all but Dickerson were liable for unlawful retaliation. In addition, Robinson asserted claims under Pennsylvania law for assault, battery, and intentio nal infliction of emotional distress against Dickerson. Robinson sought punitive damages on all claims. Hawthorne su ed Dickerson under Pennsylvania law for loss of consor tium. Dickerson counter-claimed against Robinson for
defamation.

At the close of plaintiffs' case, defendants moved for judgment as a matter of law pursuant to Fed. R. Civ . P. 50(a). The district court granted defendants' motio n as to the Title VII hostile work environment claim agains t
Dickerson because individuals cannot be liable unde r that
statute. See Sheridan v. E.I. DuPont de Nemours and Co.

, 100 F.3d 1061, 1077-78 (3d Cir. 1996) (en banc). Th e court granted the motion as to all of Robinson's § 1983 c laims against the City on the ground that there was insuf ficient evidence of an unconstitutional policy or custom. Furthermore, with respect to the Title VII retaliat ion claim against the City (and in the alternative with respe ct to the § 1983 retaliation claim against the City, Buford, and Edwards), the court held that Robinson had not show n a causal link between her protected activity and any adverse employment action. The court granted the motion wit h respect to Robinson's Title VII quid pro quo claim against

5the City because the court found insufficient evide nce that

a job benefit or detriment was conditioned upon Rob inson's response to Dickerson's advances or that her respon se to his advances in fact affected a tangible aspect of her employment. Moreover, the court granted defendants' motion as to the § 1983 claims against Buford and E dwards on the ground that there was insufficient evidence that either was personally involved in any deprivation o f Robinson's rights (as well as, with respect to the retaliation theory, on the alternative ground described above). Finally, the court granted the motion as to the intentional infliction claim against Dickerson and struck Robinson's deman d for punitive damages on all claims because there was insufficient evidence of outrageous conduct.

The claims that went to the jury were thus as follo ws: (1) the Title VII hostile work environment claim agains t the City; (2) the § 1983 sex discrimination claim again st Dickerson; (3) the assault and battery claims again st Dickerson; (4) Hawthorne's loss of consortium claim against Dickerson; and (5) Dickerson's defamation counter-c laim. The jury returned verdicts for the defense on all o f plaintiffs' claims, as well as a verdict for Robins on on the
counter-claim.

Robinson appeals from the grant of judgment as a ma tter of law on all claims except the Title VII and inten tional infliction claims against Dickerson.3 In addition, she contests certain evidentiary rulings and a jury ins truction that allegedly affected the jury's rejection of the claims that it was permitted to consider. Nothing is at issue i n this appeal with respect to the defamation counter-claim , the assault and battery claims, or the loss of consorti um claim.

We exercise plenary review over the district court' s grant of judgment as a matter of law. Delli Santi v. CNA Ins. Co.

, 88 F.3d 192, 200 (3d Cir. 1996). "Our role is to de termine

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3. Robinson's statement of issues includes the ques tion whether the court properly granted judgment as a matter of law on what she describes as her "claim" for punitive damages, Appe llants' Br. at 2, but
her brief does not mention this issue. She has ther efore waived it. Pennsylvania v. Dept. of Health and Human Services , 101 F.3d 939, 945 (3d Cir. 1996).

6whether the evidence and justifiable inferences mos t

favorable to the [non-moving] party [would have] af ford[ed] any rational basis" for a verdict in favor of the n on-moving party. Id . (quotation omitted). We exercise plenary review over the jury instructions given by the district co urt in order to determine whether, read as a whole, the instructions stated the correct legal standard. Mil ler v. CIGNA Corp. , 47 F.3d 586, 591 (3d Cir. 1995) (en banc). Finally, we review the district court's decisions t o admit or exclude evidence for abuse of discretion, Glass v. Philadelphia Elec. Co. , 34 F.3d 188, 191 (3d Cir. 1994), although our review is plenary as to the interpreta tion or application of a legal standard underlying such a d ecision. West v. Philadelphia Elec. Co. , 45 F.3d 744, 752 (3d Cir. 1995). We will not reverse on the basis of an erron eous decision to admit or exclude evidence unless the er ror affected a "substantial right" of the aggrieved par ty. Id

.

III.

Section 1983 Equal Protection Claim Against Buford, Edwards, and the City

To prevail on her § 1983 equal protection claim, Ro binson was required to prove that she was subjected to "pu rposeful discrimination" because of her sex. Keenan v. City of Philadelphia , 983 F.2d 459, 465 (3d Cir. 1993). Moreover, to hold Buford or Edwards liable under § 1983 for s uch an equal protection violation, Robinson was required t o prove that they personally "participated in violating [he r] rights, . . . that [they] directed others to violate them, or that [they] . . . had knowledge of and acquiesced in [their] subordinates' violations." Baker v. Monroe Twp. , 50 F.3d 1186, 1190-91 (3d Cir. 1995). See also Andrews v. C ity of Philadelphia , 895 F.2d 1469, 1478 (3d Cir. 1990). Robinson does not contend that either Buford or Edwards pers onally engaged in any discriminatory conduct against her o r that they directed anyone else to do so. Rather, her arg ument is that Buford and Edwards were aware of and acquiesce d in
Dickerson's sexual harassment. We must thus determi ne, taking Robinson's evidence as true and giving her t he benefit of all reasonable inferences, what Edwards and

7Buford knew about the harassment, when they learned

about it, and what, if anything, they did in respon se.

A. Robinson does not seek to hold Edwards liable fo r anything that he did or did not do following her Ma y 1994 complaint. Rather, she contends that she told Edwar ds in 1992 that Dickerson was "hitting on [her]" and that Edwards "acquiesced" in Dickerson's conduct because he did not take any action to stop Dickerson but inste ad told
Robinson to "wait it out" because Buford and/or Dic kerson might soon be changing jobs.

Edwards responds that the jury's verdict for the Ci ty on
Robinson's Title VII hostile work environment claim conclusively establishes that he cannot be liable u nder § 1983 for acquiescing in her subjection to a hosti le
environment. If there was no hostile environment in the first place, Edwards's argument goes, then he logic ally cannot be liable for knowingly acquiescing in the e xistence of one. We reject this argument because, among othe r things, it ignores the fact that the jury's verdict does not necessarily mean that it found that Robinson was no t subjected to a hostile work environment. Instead, t he jury might have rejected her Title VII hostile work envi ronment claim on the ground that the City had an effective policy against sexual harassment. See , e.g. , Bouton v. BMW of N. Am., Inc. , 29 F.3d 103, 110 (3d Cir. 1994).

We agree with Edwards, however, that there was
insufficient evidence to show that he knew of and acquiesced in Dickerson's alleged sexual harassment . It is true that the jury could have found that Edwards kn ew in 1992 that Dickerson was "hitting on" Robinson and t hat Edwards did not take any action to stop Dickerson's conduct. But it is undisputed that, while Edwards h ad a higher rank than Dickerson, he possessed no actual supervisory authority over him. (App. 1031-32) Rega rdless of whether the evidence presented by Robinson would be adequate if Edwards had actual supervisory authorit y over Dickerson, we do not believe that Edwards can be he ld liable under § 1983 for failing to take action to c orrect the
behavior of an individual over whom he had no actua l
control.

8"A defendant in a [§ 1983] action must have persona l

involvement

in the alleged wrongs." Rode v. Dellarciprete

, 845 F.2d 1195, 1207 (3d Cir. 1988) (emphasis added) . See
also , e.g. , Andrews , 895 F.2d at 1478 ("there must be some affirmative conduct by the supervisor that played a role in the discrimination") (citing Rizzo v. Goode , 423 U.S. 362, 377 (1976)). Our cases have held that "actual knowl edge and acquiescence" suffices for supervisory liabilit y because it can be equated with "personal direction" and "di rect discrimination by the supervisor." Id . (quoting Rode , 845 F.2d at 1207). Where a supervisor with authority ov er a subordinate knows that the subordinate is violating someone's rights but fails to act to stop the subor dinate from doing so, the factfinder may usually infer tha t the supervisor "acquiesced" in (i.e., tacitly assented to or accepted) the subordinate's conduct.4 But where act ual supervisory authority is lacking, mere inaction, in most circumstances, does not reasonably give rise to a s imilar inference. As a general matter, a person who fails to act to
correct the conduct of someone over whom he or she has no supervisory authority cannot fairly be said to h ave "acquiesced" in the latter's conduct.

General tort principles provide a useful analogy. U nless a "master"-"servant" relationship exists, the circums tances in which one person may be held liable for a tort comm itted by another are quite limited, see Restatement (Second) of Torts §§ 876-878 (1977), and none appears to be app licable here. A claim against a "master" based on a tort co mmitted by a "servant" bears a resemblance to a § 1983 clai m against a government supervisor based on a constitu tional tort committed by a subordinate,5 but a person cann ot be a "master" unless he or she has "the right to contr ol the physical conduct" of the servant. Restatement (Seco nd) of Agency § 2(1) (1957). By analogy, we hold that, exc ept perhaps in unusual circumstances, a government offi cial or employee who lacks supervisory authority over the p erson who commits a constitutional tort cannot be held, b ased on

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4. See Webster's Third New International Dictionary 18 (1971); Random House Dictionary of the English Language Unabridged Ed. 13 (1967).

5. We do not suggest, however, that all rules appli cable to the former type of claim may be applied by analogy to the latt er.

9mere inaction,6 to have "acquiesced" in the unconst itutional

conduct.

Here, it is clear that Edwards did not control or h ave the right to control Dickerson's physical conduct in th e performance of his job, and Edwards is thus not lia ble for Dickerson's conduct.7 Accordingly, we affirm the di strict

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6. Of course, if the government official or employe e had sufficient personal involvement in the constitutional tort, he or she may be held liable. In this context, the rules set out in §§ 87 6 and 877(a) of the Restatement (Second) of Torts provide useful guidan ce. Section 876

states:

For harm resulting to a third person from the torti ous conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other o r pursuant to a common design with him, or

(b) knows that the other's conduct constitutes a b reach of duty and gives substantial assistance or encouragement t o the other so to conduct himself, or

(c) gives substantial assistance to the other in a ccomplishing a tortious result and his own conduct, separately con sidered, constitutes a breach of duty to the third person.

Section 877(a) provides:

For harm resulting to a third person from the torti ous conduct of another, one is subject to liability if he

(a) orders or induces the conduct, if he knows or s hould know of
circumstances that would make the conduct tortious if it were his

own . . . .

7. All of our prior cases discussing the issue of s upervisory liability for "acquiescence" involved defendants who had actual a uthority to control the conduct of the person alleged to have violated the plaintiff's rights. Our decision here is thus fully consistent with our holdings in those

cases.

For example, in Baker , 50 F.3d at 1193-94, we held that the officer who was in charge of a drug raid could be liable un der § 1983 for certain allegedly illegal actions taken by the officers und er his command where there was "sufficient evidence to permit an inferen ce that [the commanding officer] knew of and acquiesced in the t reatment the [plaintiffs] were receiving at the hands of the oth er officers acting under

10court's grant of judgment as a matter of law to Edw ards on

Robinson's § 1983 equal protection claim.

B. Robinson argues that Buford is liable under§ 198 3
for Dickerson's conduct because Buford "took absolu tely no action to remedy Robinson's situation, and the evid ence suggests that he thought Dickerson's conduct a joke ." Appellants' Br. at 22. We disagree, because we are unable to find any evidence that Buford had any knowledge of any alleged harassment before May 1994. (As with Edward s, Robinson does not argue that Buford is liable based on anything he did or failed to do following her May 1 994 complaint.)

Robinson testified that Edwards told her in 1992 th at it would not serve any purpose for him to forward her complaint to Buford because Buford would not take i t seriously. It seems most doubtful that Edwards's st atement would have been admissible at trial against Buford, but in

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his supervision." 50 F.3d at 1193. The commanding o fficer indisputedly had the authority to control the conduct of the off icers under his
command.

In Keenan , 983 F.2d at 465-68, the plaintiffs alleged that t hey were transferred in retaliation for protected activity, and the jury agreed. We held that four supervisors could be liable under § 1983 where they knew of the plaintiffs' protected activity and approved the transfers anyway. Id

. at 468. We concluded that "the evidence [was] suffi cient to establish that the plaintiffs were impermissibly disciplined by [t he four supervisors] for conduct that constituted protected activity." Id . Keenan is distinguishable because the four supervisors approv ed the transfers and possessed formal authority over their respective su bordinates who
recommended the transfers.

In Andrews , 895 F.2d at 1478-79, the supervisors not only had direct authority over the primary harassers but also were personally involved in the unconstitutional conduct. We upheld a verdic t against one supervisor who "personally participated in" and "co ndoned" the harassment perpetrated by other officers under his supervision. As to another supervisor, "the man who was ultimately res ponsible for the conduct of the Division," we held that the evidence supported the jury's finding that he was aware of the harassment and not only did nothing to stop it, but told the plaintiff that "you have t o expect this working with the guys." Id . at 1479.

11any event this statement in no way tends to show th at

Buford in fact was aware in 1992 that Dickerson was sexually harassing Robinson. The uncontradicted evi dence shows that Buford first learned of Robinson's compl aint when Bochter told him about it on May 31, 1994. We therefore affirm the district court's grant of judg ment as a matter of law to Buford on Robinson's § 1983 equal protection claim.

C. Our conclusion that Buford is not liable under § 1983 for Dickerson's alleged sexual harassment re quires us to reject as well Robinson's submission that the City is liable under § 1983 for Dickerson's alleged sexual harassment. The City, as a municipality, is not lia ble through respondeat superior for the constitutional torts of its employees. Monell v. Dept. of Social Services , 436 U.S. 658 (1978). Municipal liability attaches only "when execution of a government's policy or custom, wheth er made by its lawmakers or by those whose edicts or a cts may fairly be said to represent official policy, in flicts the injury" complained of. Id . at 694. As we explained in
Andrews :

A government policy or custom can be established in one of two ways. Policy is made when a decisionmake r possess[ing] final authority to establish municipal policy with respect to the action issues an officia l proclamation, policy, or edict. A course of conduct is considered to be a "custom" when, though not authorized by law, such practices of state official s [are] so permanent and well-settled as to virtually const itute
law.

895 F.2d at 1480 (quotations omitted) (emendations in original).

Robinson does not argue that the City is liable bec ause it maintained a "custom" of permitting sexual haras sment. Rather, she asserts that the City is liable through Buford, who is concededly a policymaker whose conduct is attributable to the City. In accordance with our ho lding that Buford is not liable under § 1983 for Dickerso n's alleged sexual harassment, we conclude that the Cit y likewise is not liable under § 1983. We therefore a ffirm the

12district court's grant of judgment as a matter of l aw to the

City on Robinson's § 1983 equal protection claim.

IV.

Title VII Quid Pro Quo Sexual Harassment Claim Against the City

In addition to claiming that Dickerson's sexual harassment created a hostile work environment, Robi nson alleged that Dickerson engaged in quid pro quo sexu al harassment, for which the City was liable under Tit le VII. The district court granted judgment as a matter of law for the City on this claim, but we hold that Robinson p resented sufficient evidence to go to the jury on this claim .8

A. This court has not yet had occasion to consider the elements of a quid pro quo claim, but we agree with the formulation set out in 29 C.F.R. § 1604.11(a)(1) an d (2), which provides:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a s exual nature constitute sexual harassment when (1) submission to such conduct is made either explicitl y or implicitly a term or condition of an individual's employment [or] (2) submission to or rejection of s uch conduct by an individual is used as the basis for employment decisions affecting such individuals. .

..

See also , e.g. , Heyne v. Caruso , 69 F.3d 1475, 1478 (9th Cir. 1995); Cram v. Lanson & Sessions , 49 F.3d 466, 473 (8th Cir. 1995); Karibian v. Columbia University , 14 F.3d 773, 777 (2d Cir. 1994); Martin v. Nannie and the

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8. We reject at the outset defendants' contention t hat there is no
evidence that Dickerson ever made a sexual advance to Robinson. The record is replete with evidence of implicit sexual advances, so we take defendants to mean that only an explicit request fo r sex qualifies as a sexual advance. We disagree. We note simply that th e evidence previously summarized concerning Dickerson's allege d statements and actions would have entitled the jury to find that D ickerson made sexual
advances to Robinson.

13Newborns, Inc. , 3 F.3d 1410, 1416 (10th Cir. 1993); Lipsett

v. University of Puerto Rico , 864 F.2d 881, 898 (1st Cir. 1988).9

Under this test, the consequences attached to an employee's response to the sexual advances must be sufficiently severe as to alter the employee's "com pensation, terms, conditions, or privileges of employment," 42 U.S.C. § 2000e-2(a)(1), or to "deprive or tend to deprive [him or her] of employment opportunities or otherwise adver sely affect his [or her] status as an employee." 42 U.S. C. § 2000e-2(a)(2). This does not mean that the employ ee must be threatened with or must experience " `economic' or `tangible' discrimination." Meritor , 477 U.S. at 64. See also Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21 (1993). But by the same token, not every insult, slight, or unpleasantness gives rise to a valid Title VII clai m. In
Meritor , the Supreme Court noted that "not all workplace conduct that may be described as `harassment' affec ts a `term, condition, or privilege of employment.' " 47 7 U.S. at 67. The Court also suggested that the " `mere utter ance of an ethnic or racial epithet which engenders offensi ve feelings in an employee' would not affect the condi tions of employment to [a] sufficiently significant degree t o violate
Title VII." Id . (quoting Rogers v. EEOC , 454 F.2d 234, 238 (5th Cir. 1971)). Thus, whether in a hostile work

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9. Courts have unanimously held that an employer is strictly liable for quid pro quo harassment by a supervisor having actu al or apparent authority to carry out the threat or promise that i s made to the victim.
See Karibian , 14 F.3d at 777. See also Meritor Sav. Bank, FSB v . Vinson

, 477 U.S. 57, 76 (1986) (Marshall, J., concurring in the judgment) ("every Court of Appeals that has considered the issue has held that sexual harassment by supervisory personnel is automaticall y imputed to the employer when the harassment results in tangible de triment to the subordinate employee"). This rule differs from that which applies in a
hostile work environment case. See Bouton v. BMW of N. Am., Inc. , 29 F.3d 103, 106-07 (3d Cir. 1994). This distinction h as been criticized,

see , e.g. , J. Hoult Verkerke, Notice Liability in Employment Discrimination

Law , 81 Va. L. Rev. 273, 277 (1995), but since the par ties here have not addressed the issue, we assume that the City would be liable for any quid pro quo sexual harassment committed by Dickers on. Cf. Bouton , 29 F.3d at 106-07 (stating, in a case involving only a hostile environment claim, that "[w]ithout the agency relationship, qui d pro quo harassment would be impossible, so the employer is responsible ").

14environment case or a quid pro quo case, objectiona ble conduct attributable to an employer is not always s ufficient to alter an employee's terms, conditions, or privil eges of employment and is thus not always sufficient to vio late
Title VII.

Subsections (1) and (2) of 29 C.F.R. § 1604.11(a) d iffer in that subsection (1) addresses cases in which an emp loyee is told beforehand that his or her compensation or some other term, condition, or privilege of employment w ill be affected by his or her response to the unwelcome se xual advances, whereas subsection (2) addresses cases in which the employee's response to sexual advances is there after used as a basis for a decision concerning compensat ion, etc. Under subsection (1), a quid pro quo violation occurs at the time when an employee is told that his or he r compensation, etc. is dependent upon submission to unwelcome sexual advances. At that point, the emplo yee has been subjected to discrimination because of sex . (This is so, of course, because, if the employee had been a member of the opposite sex, his or her compensation , etc. presumably would not have been made dependent on submission.) Whether the employee thereafter submit s to or rebuffs the advances, a violation has nevertheless occurred. Like the Second Circuit, we "do not read Title VII to punish
the victims of sexual harassment who surrender to unwelcome sexual encounters. . . . The supervisor's conduct is equally unlawful under Title VII whether the employee submits or not." Karibian , 14 F.3d at 778.10

Similarly, there is a violation under subsection (1 ) even if the employee rebuffs the advances and his or her compensation, terms, conditions, or privileges of employment are not in fact altered, i.e., even if t he supervisor does not follow through on his or her th reat. The threat is sufficient to constitute "discriminat[ion ] . . . with

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10. Whether the employee "submi[tted] to the superv isor's advances is certainly relevant" because it bears on "the issue whether the sexual advances were unwelcome, not whether unwelcome sexu al advances
were unlawful." Karibian , 14 F.3d at 779. In this case, it is undisputed
that Robinson refused to submit to Dickerson's alle ged advances, and it is clear that the jury would have been entitled tof ind that the advances
were unwelcome.

15respect to . . . compensation, terms, conditions, o r

privileges of employment, because of . . . sex." 11 42 U.S.C. § 2000e-2(a)(1). But see Gary v. Long , 59 F.3d 1391, 1396 (D.C. Cir. 1995).

Under subsection (2), a plaintiff must make a showi ng that differs significantly from that required under subsection (1). Under subsection (2), the plaintiff must show that his or her response to unwelcome advances was subsequently used as a basis for a decision about compensation, etc. Thus, the plaintiff need not sho w that submission was linked to compensation, etc. at or b efore the time when the advances occurred. But the employ ee must show that his or her response was in fact used thereafter as a basis for a decision affecting his or her compensation, etc.

B. Robinson contends that Dickerson linked her response to his advances to the job detriments of " a bad reputation at work" and "unjust reprimands." Appell ants' Br. at 28-29. Robinson explains that "[m]any times after Robinson would reject him, Dickerson unjustifiably reprimanded her in a very harsh manner and in front of other officers; he continuously bothered her at wor k, even when she was not under his direct command; he phone d her at home and work for reasons unrelated to polic e business; and he made negative comments to her rega rding her work and her marriage." Appellants' Br. at 29 ( citations omitted).

We are not persuaded that these alleged actions, ev en when taken together, rose to the level of conduct a ffecting Robinson's "compensation, terms, conditions, or pri vileges" of employment. Formal reprimands that result in a n otation in an employee's personnel file could be sufficient ly concrete, but harsh words that lack real consequenc es are not. See Meritor , 477 U.S. at 67.

We reach a different conclusion with respect to Robinson's allegation that Dickerson blocked her tr ansfer to
the detective bureau because she refused to accede to his

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11. The fact that no adverse action was taken is of course relevant to the question whether a threat or promise was made.

16advances. The record before us would certainly perm it the
conclusion that Robinson was denied a transfer to t he detective bureau (which would have been a promotion ) because she had performed unsatisfactorily in two undercover assignments, because she was unable to a ccept criticism or take direction, or for other valid wor k-related reasons. However, we believe that the record would also support a finding that Dickerson refused to recomme nd her
transfer because she rebuffed his advances. It is undisputed that a supervisor's recommendation weigh s very heavily in determining who is transferred, so the jury
could conclude that Dickerson's refusal to recommen d Robinson cost her the transfer. Accordingly, the ev idence was sufficient to support a finding of quid pro quo harassment within the meaning of 29 C.F.R. § 1604.1 1(a)(2).12

Robinson testified that Dickerson told her on sever al
occasions that he would recommend her for transfer to the detective bureau (App. 111, 113-14, 121-22, 142, 16 0-61), but that after a party at which Dickerson touched h er leg under the table and pulled her into a compromising position for a photograph, he responded to her rene wed inquiry about the transfer by telling her that "he had talked to the Chief and he had talked to other detectives, and they had all said I had a bad attitude," implying that t his was the reason she had not been transferred. (App. 143) She also testified that, when she spoke to Edwards shor tly thereafter, he confirmed that Dickerson had "been s aying bad things about [her] lately to Buford and [him]." (App.

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12. Robinson has not called to our attention any ad missible evidence that Dickerson explicitly threatened her before or at the time he made a sexual advance that her response would affect her " compensation, terms, conditions, or privileges" of employment. See 29 C.F.R. § 1604.11(a)(1). In light of our conclusion that the evidence is suf ficient to show that Dickerson in fact did use Robinson's response to hi s advances as a basis for a decision affecting her compensation, etc. wit hin the meaning of subsection (2), we need not consider whether the ev idence would support a finding that Dickerson imposed such a condition " implicitly" before or at the time he made the alleged advances within the meaning of subsection (1). On remand, the district court shoul d decide whether Robinson can proceed to trial based only on the the ory of quid pro quo harassment set out in 29 C.F.R. § 1604.11(a)(2) or whether she can rely on 29 C.F.R. § 1604.11(a)(1) as well.

17145) When she asked Edwards how she should deal wit h that and told him that "none of it [what Dickerson had been saying] was true," he replied, "I know. I know Jim is like that. . . . Jimmy thinks he's a lover." (App. 146) Moreover, when Robinson asked Edwards why he thought Dickerso n was saying bad things about her, Edwards said that "Dickerson would like to have nothing better than a 23- year-old girl like you." (App. 146) Robinson testif ied that, after Dickerson told her again in April 1993 that s he would be transferred, Edwards "told [her] that he [didn't ] know why Commander Dickerson said he was going to recommend [her], because he [Dickerson] made sure t hat [she] wasn't on that [March 1993 transfer] list." ( App. 162)

We hold that this evidence is sufficient to entitle a reasonable factfinder to conclude that Robinson was denied
a transfer to the detective bureau because she refu sed Dickerson's advances. We believe that, in contrast to minor slights like "negative comments," receiving or bein g denied a desired promotion is sufficiently serious and tan gible to constitute a change in the employee's "terms, condi tions, or privileges" of employment.13 If the jury finds that Robinson was subjected to unwelcome sexual advances and that her response to those advances was the basis for Dicker son's refusal to recommend her for such a transfer, Robin son will have proved that the City, through Dickerson, discriminated against her because of her sex with r espect to the "compensation, terms, conditions, or privile ges" of her employment. 42 U.S.C. § 2000e-2(a)(1). Accordin gly, we reverse the district court's grant of judgment as a matter of law to the City on Robinson's claim under Title VII for quid pro quo sexual harassment.14

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13. Here, although the transfer at issue would have been a promotion, Robinson has not directed us to any specific eviden ce that the transfer would have increased her compensation. Paragraph 43 of her complaint does allege that a "transfer to the position of det ective from the position of patrolman . . . is a promotion and carries with it an increase in annual compensation . . . ." (App. 27) Moreover, th ere appears to have been a stipulation between the parties with respect to the difference in pay between the detective level and the patrolman l evel. (App. 1310)

14. The jury returned a verdict for Dickerson on Ro binson's claim under § 1983 against Dickerson for discriminating against her because of her

18V.

Title VII and § 1983 Retaliation Claims Against the City, Buford, and Edwards

Robinson contends that, after she filed her complai nt with the EEOC, she suffered reprisals at work. Sect ion 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), makes it "an unlawful employment practice" for "an employer" to "discriminate" against an employee "because he [the employee] has made a charge, testified, assisted, o r participated in any manner in an investigation, pro ceeding, or hearing under [Title VII]." Robinson sued the Ci ty for retaliation under the above-quoted provision of Tit le VII.
She also sued Buford and Edwards for retaliation un der § 1983, apparently for violating her right, secured by the same provision of Title VII, to protest discriminat ion.

In Nelson v. Upsala College , 51 F.3d 383 (3d Cir. 1995),
we set forth the elements of a retaliation claim:

To establish discriminatory retaliation under Title VII, a plaintiff must demonstrate that: (1) she engaged in

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sex, in violation of the Equal Protection Clause. S ince this claim was allowed to go the jury after the court granted judg ment as a matter of law on Robinson's quid pro quo and retaliation theo ries, it would appear that this claim was founded upon a hostile work env ironment theory. It
is unclear from the record before us whether this c laim was also founded upon a theory of quid pro quo harassment. If it was , our discussion in this section applies equally to it, and it should b e tried on remand along with Robinson's Title VII quid pro quo claim agains t the City. (Unlike with respect to the § 1983 claims against Buford, E dwards, and the City, there is no legal issue regarding Dickerson's perso nal liability under § 1983.) We of course recognize that federal pleadi ng rules are liberal,
but it could be unfair for Robinson to assert a cla im on remand that she did not make clear in the earlier proceedings in th e district court. Compare Appellants' Br. at 2, 4, 28 (referring to a claim under § 1983 for quid pro quo harassment, though apparently only aga inst the City) with Appellees' Br. at 22 (noting Robinson's references to a purported § 1983 claim for quid pro quo harassment, but stating that the district court "analyzed Robinson's quid pro quo claim under a str ict Title VII analysis"). We leave it to the district court to de termine whether on remand Robinson should be permitted to pursue a cla im against Dickerson under § 1983 on a quid pro quo theory.

19activity protected by Title VII; (2) the employer t ook an

adverse employment action against her; and (3) ther e was a causal connection between her participation i n the protected activity and the adverse employment
action.

Id . at 386 (citations omitted). See also Woodson v. S cott Paper Co. , 109 F.3d 913, 920 (3d Cir. 1997); Kachmar v. SunGard Data Systems, Inc. , 109 F.3d 173, 177 (3d Cir. 1997); Aman v. Cort Furniture Rental Corp. , 85 F.3d 1074, 1085 (3d Cir. 1996); Jalil v. Avdel Corp. , 873 F.2d 701, 708 (3d Cir. 1989) (same); Delli Santi v. CNA Ins. Co. , 88 F.3d 192, 198 (3d Cir. 1996) (same, under New Jersey law ).

It is undisputed that Robinson's EEOC complaint constitutes protected activity under Title VII. The district court granted judgment as a matter of law to defend ants on Robinson's retaliation claims on the ground that sh e had not presented evidence that the alleged reprisals w ere the result of the protected activity. (App. 1029) On ap peal, Robinson argues that the court erred in evaluating her
evidence of retaliation. She submits that she was s ubjected to the following acts of reprisal due to the filing of her EEOC complaint:

restricted job duties, reassignment and subsequent failure to transfer her out of an assignment in whi ch she was under the direct command of the alleged harasser, and the issuance of several unsubstantiat ed oral reprimands against her. Additionally, she test ified that after refuting one of his advances, Dickerson sometimes would not talk to her, or would make unnecessary derogatory comments to her. . . [Moreov er, she testified that] "Chief Edwards told me that he didn't know why Commander Dickerson said he was going to recommend me, because he made sure that I wasn't on that [transfer] list."

Appellants' Br. at 27 (citations omitted).

A. In our view, much of the allegedly retaliatory c onduct of which Robinson complains, even if her evidence i s believed, does not give rise to a claim for retalia tion. The alleged "unsubstantiated oral reprimands" and "unnecessary derogatory comments" suffered by Robin son

20following her complaint do not rise to the level of what our cases have described as "adverse employment action. "

Title VII declares that "[i]t shall be an unlawful employment practice for an employer to discriminate " against an employee "because he has made a charge" of discrimination. 42 U.S.C. § 2000e-3(a). Title 42 U. S.C. § 2000e-2(a) makes it an "unlawful employment pract ice"

to fail or refuse to hire or to discharge any indiv idual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions , or privileges of employment, because of such individua l's . . . sex . . . or to limit, segregate, or classify his employees . . . in any way which would deprive or t end to deprive any individual of employment opportuniti es or otherwise adversely affect his status as an empl oyee, because of such individual's . . . sex . . . .

Retaliatory conduct other than discharge or refusal to rehire is thus proscribed by Title VII only if it a lters the employee's "compensation, terms, conditions, or pri vileges of employment," deprives him or her of "employment opportunities," or "adversely affect[s] his [or her ] status as an employee." It follows that "not everything that makes an employee unhappy" qualifies as retaliation, for"[o] therwise, minor and even trivial employment actions that `an irritable, chip-on-the-shoulder employee did not li ke would
form the basis of a discrimination suit.' " Smart v . Ball State University , 89 F.3d 437, 441 (7th Cir. 1996) (quoting Williams v. Bristol-Myers Squibb Co. , 85 F.3d 270, 274 (7th Cir. 1996)).

Courts have operationalized the principle that reta liatory conduct must be serious and tangible enough to alte r an employee's compensation, terms, conditions, or priv ileges of employment into the doctrinal requirement that the alleged retaliation constitute "adverse employment action." See
Williams , 85 F.3d at 273 (interpreting parallel provisions of the Age Discrimination in Employment Act to require "materially adverse action"); McDonnell v. Cisneros , 84 F.3d 256, 258 (7th Cir. 1996) ("The language of `materia lly adverse employment action' that some courts employ in retaliation cases is a paraphrase of Title VII's ba sic

21prohibition against employment discrimination, foun d in 42

U.S.C. §§ 2000e-2(a)(1) and (2)."). Accordingly, ju st as we concluded that a quid pro quo plaintiff must show a "quo" that is serious enough to alter his or her "compens ation, terms, conditions, or privileges" of employment, we hold that the "adverse employment action" element of a retaliation plaintiff's prima facie case incorporat es the same requirement that the retaliatory conduct rise to the level of a violation of 42 U.S.C. § 2000e-2(a)(1) o r (2).15

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15. In Nelson v. Upsala College , 51 F.3d 383 (3d Cir. 1995), the plaintiff, a former employee of Upsala, contended that Upsala retaliated against her by requiring that she obtain prior approval bef ore going onto Upsala's campus. We observed that 42 U.S.C. § 2000e -3(a) "interdicts `an unlawful employment practice' rather than conduct i n general which the former employee finds objectionable," id . at 388, and rejected the plaintiff's argument on the ground that the alleged ly retaliatory action "had no impact on any employment relationship that Nelson had, or might have in the future." Id . at 389. In Charlton v. Paramus Bd. of
Education , 25 F.3d 194 (3d Cir. 1994), we held that a former employee could state a claim for retaliation arising out of post-employment conduct, so long as the retaliation affected the pl aintiff's future employment opportunities. Id . at 200-01. We noted that retaliation claims have been permitted "where the retaliation r esults in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational harm." Id . at 200.

Although the instant case does not require us to re solve the issue, it appears from our decisions in Nelson and Charlton that a plaintiff who claims that the alleged retaliation prejudiced his or her ability to obtain or keep future employment would meet the standard w e announce today by showing that the retaliatory conduct was related to his or her future employment and was serious enough to materially alt er his or her future employment prospects or conditions. See , e.g. , Smith v. St. Louis University , 109 F.3d 1261, 1266 (8th Cir. 1997) (negative ref erences causing potential employers to decline to hire plai ntiff constitute actionable retaliation); Ruedlinger v. Jarrett , 106 F.3d 212, 214 (7th Cir. 1997) (providing information to subsequent employer that caused it to fire plaintiff constitutes retaliation that "imping e[s] on her `future employment prospects or otherwise ha[s] a nexus to employment' ") (quoting Veprinsky v. Fluor Daniel, Inc. , 87 F.3d 881, 891 (7th Cir. 1996)); Passer v. American Chemical Society , 935 F.2d 322, 331 (D.C. Cir. 1991) (under parallel provision of the ADEA, h olding that defendant's retaliatory cancellation of a seminar p lanned in honor of plaintiff gave rise to retaliation claim because th e cancellation humiliated

22We hold that Robinson's allegations that she was

subjected to "unsubstantiated oral reprimands" and "unnecessary derogatory comments" following her complaint do not rise to the level of the "adverse employment action" required for a retaliation claim . See Wanamaker v. Columbia Rope Co. , 108 F.3d 462, 465-66 (2d Cir. 1997) ("barring a terminated employee from using an office and phone to conduct a job hunt presents only a minor, ministerial stumbling block toward securing future employment" and thus did not constitute adverse employment action under parallel provisions of the ADEA); Veprinsky , 87 F.3d at 895 (former employer's subsidizing of attorney for an individual sued by plaintiff was "e ntirely unrelated to employment" and resulted in "too intan gible" adversity to plaintiff and thus could not give rise to a retaliation claim); Williams , 85 F.3d at 274 (lateral transfer involving small indirect effect on employee's earni ngs from
commissions "cannot rise to the level of a material ly adverse employment action"). See also McDonnell , 84 F.3d at 258 (implying in dicta that "anger, irritation, dirty looks,
even the silent treatment can cause distress" but d o not constitute materially adverse employment action); H arley v.
McCoach , 928 F. Supp. 533, 541-42 (E.D. Pa. 1996).

B. In addition, much of what Robinson characterizes as retaliation for her EEOC complaint is in fact alleg ed to have
occurred before she filed the complaint. What Dickerson may have done after Robinson "refut[ed] one of his advances" might constitute evidence of a hostile wo rk environment or of quid pro quo harassment, but sinc e it happened before Robinson filed her complaint, Robin son cannot establish a causal connection between her complaint and the conduct. What remains of Robinson 's evidence is essentially as follows: (1) that a co-w orker named Mona Wallace retaliated against Robinson by restricting her computer access during the summer o f 1994

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plaintiff in the eyes of his peers "and made it mor e difficult for him to procure future employment"); Sherman v. Burke Contr acting, Inc. , 891 F.2d 1527, 1532 (11th Cir. 1990) (retaliation claim proper where plaintiff's former employer persuaded plaintiff's n ew employer to fire him).

23to weekdays, in contrast to Robinson's previously

unrestricted access; and (2) that the "ten-car memo " written by Edwards and sent to Bochter, Dickerson, and Bufo rd was a retaliatory attempt to force Robinson to retu rn to working under the direct supervision of Dickerson, her alleged harasser. Assuming arguendo that Wallace's
conduct and Edwards's memo constitute "adverse employment action," we do not believe that Robinson demonstrated the required "causal link" between her complaint and either Wallace's conduct or Edwards's
memo. Aman , 88 F.3d at 198.

Robinson testified that one Saturday during the sum mer of 1994, she attempted to work on her computer but was unable to do so because her authorization had been restricted to weekdays. (App. 240) Before that time

, Robinson had had unrestricted computer access. (App . 240) Wallace, who was a co-worker of Robinson's, is not implicated in any way in any of the alleged sexual harassment. Robinson points to no evidence that any one other than Wallace was involved in the decision to restrict her computer access, and she offers no evidence of any sort
to show that Wallace took this action in retaliatio n for Robinson's complaint. On the contrary, Robinson rel ies merely on a post hoc, ergo propter hoc inference fr om the fact that the restriction was imposed after Robinso nfiled her complaint.

Our cases are seemingly split on the question wheth er the timing of the allegedly retaliatory conduct can , by itself, support a finding of causation. Compare Jalil v. Av del Corp. , 873 F.2d 701, 708 (3d Cir. 1989) (plaintiff "demonstrated the causal link . . . by the circumst ance that the discharge followed rapidly, only two days later , upon Avdel's receipt of notice of [his] EEOC claim") wit h Delli
Santi v. CNA Ins. Co. , 88 F.3d 192, 199 n.10 (3d Cir. 1996) ("timing alone will not suffice to prove retaliator y motive"). In Woodson v. Scott Paper Co. , 109 F.3d 913, 920 (3d Cir. 1997), relying on Jalil , we stated in dicta that "temporal proximity between the protected activity and the
termination is sufficient to establish a causal lin k." On the other hand, in Quiroga v. Hasbro, Inc. , 934 F.2d 497 (3d Cir. 1991), we characterized our statement in Jalil that the

24"timing of the discharge in relation to Jalil's EEO C

complaint may suggest

discriminatory motives" as the holding of that case, and stated that in Jalil "we stopped short of creating an inference based upon timing al one." Id

. at 501 (emphasis added).

We believe that, if Jalil is to be interpreted as holding that timing alone can be sufficient, that holding m ust be confined to the unusually suggestive facts of Jalil . Thus, even if timing alone can prove causation where the discharge follows only two days after the complaint , the mere fact that adverse employment action occurs aft er a complaint will ordinarily be insufficient to satisf y the plaintiff's burden of demonstrating a causal link b etween the two events. See Quiroga , 934 F.2d at 501 (holding that, "[a]s a matter of fact," the timing of Quiroga's al leged constructive discharge was not independently suffic ient to prove it was caused by his complaint). There is no evidence that Wallace's restriction of Robinson's computer a ccess followed immediately upon her complaint, so this is thus not one of the extraordinary cases where the plaint iff can demonstrate causation simply by pointing to the tim ing of the allegedly retaliatory action. Accordingly, we r eject
Robinson's claim that Wallace's action constituted unlawful
retaliation.16

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16. Because Robinson has failed to present evidence of a causal connection between her complaint and Wallace's cond uct, Robinson has not made out a prima facie case that Wallace's cond uct constituted
retaliation. See , e.g. , Aman , 85 F.3d at 1085. Defendants therefore were not required to proffer a legitimate, non-discrimin atory reason for Wallace's conduct. However, they did so, presenting evidence that
Wallace restricted Robinson's access because Robins on had been committing security breaches (for example, by bring ing files home) and that Wallace took this action entirely on her own. (App. 562-66, 579) If defendants were obligated to proffer such an explan ation, Robinson would then have the burden of presenting evidence f rom which a reasonable jury could conclude either that "the art iculated reason is a pretext for the retaliation or that a discriminator y reason more likely motivated the employer." Delli Santi , 88 F.3d at 199. Robinson has not pointed to any implausibilities, inconsistencies, c ontradictions, incoherencies, or the like in Wallace's testimony, see Sheridan , 100 F.3d at 1072, and has not even attempted to explain why the jury should

25A similar analysis applies to the "ten-car memo" wr itten

by Edwards in June 1994. Before that time, Robinson had been assigned to the "ten-car" (a drug suppression vehicle) but had been detailed to criminal intelligence wher e she worked under Bochter. Dickerson was in charge of th e tencar but had no supervisory authority over the crimi nal intelligence unit. The ten-car memo states that "du e to the increased activity in the downtown area and with th e ending of the school year, the need for the extra a ssistance that the ten car provides has increased. Due to the se facts, effective immediately, all personnel assigned to a ten car is [sic] to be immediately informed that they will rid e the vehicle that they are assigned to." (App. 237)

Robinson seeks to portray this memo as a pretextual attempt to force her to work under Dickerson after having filed a complaint against him. However, it is undis puted that the memo was not applied to Robinson; she rema ined in the criminal intelligence unit from June 1994 (w hen the memo was circulated) until October 1994, when she stopped reporting for work. (App. 239-40, 249-50) A gain, Robinson attempts to link the ten-car memo to her complaint simply by pointing to the temporal sequen ce of the two events, but in light of the circumstances n oted above, this is insufficient. There is consequently no basis for a finding that the ten-car memo constituted ret aliation against Robinson for her complaint of discriminatio n.

Robinson's final argument is that the jury would ha ve been entitled to return a verdict for her on her re taliation claim if it had agreed that she was subjected to a hostile
work environment. She relies on our statement in Am an that "an atmosphere of condoned sexual harassment i n the workplace increases the likelihood of retaliation f or complaints in individual cases," 85 F.3d at 1086, b ut that

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disbelieve Wallace. Nor does the record itself sugg est any such reason. Rather than showing that Wallace was in league with Dickerson or management generally, the record in fact reveals th at Wallace accompanied Robinson to the EEOC as "moral support" when Robinson filed her complaint. (App. 560) We therefore hold, in the alternative, that Robinson failed to present evidence undermining def endants' proffered legitimate, non-discriminatory explanation for the challenged conduct.

26statement is merely an empirical prediction; it is not a legal

theory that obviates the presentation of actual evi dence of retaliation. In Hawkins v. Hennepin Technical Cente r , 900 F.2d 153, 156 (8th Cir. 1990), the source of the ci ted
statement from Aman , the court held that the plaintiff should have been allowed to present evidence of the defendant's prior acts of sexual harassment, even i f those acts were not independently actionable, in order to cast doubt upon the credibility of the defendant's proff ered legitimate, non-discriminatory explanation for the allegedly retaliatory conduct. Id . at 155-56. In Hawkins , the plaintiff had enough evidence of retaliation to get to the ju ry even without the evidence of "condoned sexual harassment ," so the court's decision cannot be read as upholding th e argument that Robinson urges upon us here.17

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17. In Glass v. Philadelphia Elec. Co. , 34 F.3d 188, 195 (3d Cir. 1994), we quoted the Eighth Circuit's statement in Hawkins with approval in support of the proposition that evidence that Glass had been subjected to racial harassment during a time period for which he received an unfavorable performance rating was relevant to show that that rating was of questionable validity and thus that the empl oyer's reliance on that rating in denying Glass certain promotions was pretextual. Therefore, like Hawkins itself, Glass does not support the view that evidence that the employer condoned sexual harassme nt suffices to prove the element of the employee's prima facie cas e requiring a causal link between his or her complaint and a subsequent adverse employment
action.

In Woodson , we stated that evidence that the employer condone d a
harasser's conduct can contribute to an inference t hat subsequent adverse employment action taken by the harasser aga inst the plaintiff was causally linked to the plaintiff's complaint ab out the harassment. 109 F.3d at 922. This observation rests upon the re cognition that, if the harasser got away with the harassment, it is more l ikely that he or she will believe that retaliation will be safe as well, and conversely, if the employer took prompt and adequate action against th e harasser, the
harasser will be less confident of his or her abili ty to engage in retaliation with impunity. In this case, however, R obinson does not contend that Dickerson -- the alleged harasser-- to ok any retaliatory action against her.

In any event, we made it clear in Woodson that this sort of evidence was not independently sufficient to support an infe rence of causation.
See id . at 921. Whereas Woodson presented other extensive evidence, Robinson seeks to rely solely on evidence that Dick erson subjected her

27In light of the foregoing, we affirm the district c ourt's

grant of judgment as a matter of law to defendants on Robinson's Title VII and § 1983 retaliation claims. 18

VI.

Jury Instruction on Employer Liability

The district court denied the City's motion for jud gment
as a matter of law as to Robinson's claim under Tit le VII for a hostile work environment, and the jury returned a verdict for the City. Robinson contends that this verdict m ust be upset because the court erred in its instruction to the jury on the issue of employer respondeat superior liabil ity under
Title VII for hostile environment sexual harassment .19 As we

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to a hostile work environment and that the City fai led to take prompt and adequate action to remedy the harassment. If we were to uphold Robinson's argument, every employee who succeeds on a hostile environment claim would be able to prove a causal l ink between his or her complaint of harassment and any subsequent adve rse employment action. We do not believe that actual proof of reta liatory motive can be dispensed with so easily.

18. In addition to the grounds described in the tex t, which apply equally to Robinson's Title VII retaliation claim and her§ 1983 retaliation claim, we hold that judgment as a matter of law was proper ly granted in favor of Edwards and Buford on Robinson's § 1983 retaliat ion claim on the ground that neither Edwards nor Buford was personal ly involved in any
retaliation. See Part III, supra . We also affirm the grant of judgment as a matter of law to the City on the § 1983 retaliati on claim on the additional ground that there was no evidence of a m unicipal policy or custom encouraging or permitting retaliation. See Part III.C, supra

.

19. In order to prevail on a claim under Title VII for a hostile work environment based on sex, an employee must prove th at: "(1) he or she
suffered intentional discrimination because of his or her sex; (2) the discrimination was pervasive and regular; (3) the d iscrimination detrimentally affected the plaintiff; (4) the discr imination would detrimentally affect a reasonable person of the sam e sex in that position; and (5) respondeat superior liability existed." Kna be v. The Boury Corp.

, ___ F.3d ____, ____, 1997 WL 282905, *3 (3d Cir.)(c iting Andrews , 895 F.2d at 1482). It is undisputed on appeal that Robi nson presented
sufficient evidence of all five elements to create a jury question.

28noted in Bouton v. BMW of N. Am., Inc. , 29 F.3d 103 (3d

Cir. 1994), the Supreme Court "has instructed court s to use agency principles when deciding employer liabil ity for sexually hostile work environments." Id . at 106 (citing Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 72 (1986)). We explained that:

The Restatement (Second) of Agency § 219 provides three potential bases for holding employers liable for sexual harassment perpetrated by their employees. Section 219(1) holds employers responsible for tort s committed by their employees within the scope of th eir employment. . . . [In addition,] [u]nder§ 219(2)(b)

, masters are liable for their own negligence or recklessness; in a harassment case, this is typical ly negligent failure to discipline or fire, or failure to take remedial action upon notice of harassment. Finally, under § 219(2)(d), if the servant relied upon appar ent authority or was aided by the agency relationship, the master is required to answer.

Id . In the instant case, Robinson contended that the City should be held liable for Dickerson's alleged haras sment on the theory that the City had notice of the harassme nt yet failed to take remedial action to put a stop to it. See Knabe v. The Boury Corp. , ___ F.3d ___, ___, 1997 WL 282905, *4 (3d Cir.) (same).

The court charged the jury as follows:

To prove the fifth element [respondeat superior lia bility on the part of the City], wife-plaintiff must prove that the City of Pittsburgh was negligent insofar as its procedure for handling sexual harassment complaints was not effective. It is important for you, the jur y, to understand that the City of Pittsburgh may only be held liable for the existence of a sexually hostile working environment that results from its own negligence. The City may not be held liable simply because one of its employees engaged in sexual
harassment.

Thus, if the City of Pittsburgh had an effective procedure for handling sexual harassment complaints at the time of the alleged incidents, the City was not

29negligent and it cannot be held liable for the impr oper

conduct of its employees.

In order to determine whether the City of Pittsburg h was negligent in this case, you must decide whether its sexual harassment procedure was effective. A sexual harassment procedure is effective if it is both kno wn to the victim of sexual harassment and its [sic] use o f the procedure timely stops the harassment.

(App. 1331-32). Robinson timely objected to this ch arge (App. 1310-11, 1314-15), arguing that "I think we'v e shown evidence where there was not an effective procedure

.. . . [U]nder the facts of this case you can't presume th ere was an effective procedure, because the procedure requi red Chief Edwards to take action, and he didn't." The c ourt responded that it was not, in fact, "presuming" tha t the City had an effective anti-harassment procedure, an d stated that "[i]t's the jury's job to decide whether it wa s effective or not." (App. 1311) We exercise plenary review over t he jury instructions in order to determine whether, read as a whole, they stated the correct legal standard. Mill er v. CIGNA Corp. , 47 F.3d 586, 591 (3d Cir. 1995) (en banc).

In Bouton , the case upon which the district court relied in its jury charge, we held that "under negligence principles, prompt and effective action by the employer will relieve it of liability." Bouton , 29 F.3d at 107 (emphasis added). Robinson argues that the charge based on Bo uton was inappropriate because the complaint in that cas e did end the harassment, while her complaint did not. Ac cording to Robinson, the court should have based its jury
instruction on Andrews , a case where the complaint did not put a stop to the harassment. Robinson's argument i s nothing more than a contention that the City's acti on in
this case was not "effective." But whether Robinson 's complaint put a stop to the harassment -- and wheth er any harassment occurred in the first place -- were fact ual issues committed to the jury. The basic problem wit h Robinson's argument is that it challenges the jury' s verdict, not the court's charge.

Robinson contends that, even if the City put an end to the harassment by transferring Dickerson following her

30May 1994 complaint, the City should have taken such

action in 1992 when she first spoke to Edwards abou t Dickerson's "hitting on her." But Robinson argued a t trial
that her 1992 conversation with Edwards constituted an attempt to avail herself of the City's anti-harassm ent procedure, and that the City failed to respond adeq uately to her complaint. (App. 1405) If the jury had believed that the 1992 conversation had taken place and that Robinson had made it sufficiently clear to Edwards that she was complaining about conduct that she perceived as sex ual harassment, the jury could have held the City liabl e. That it did not do so is not a basis to attack the charg e. Robinson's argument, both as quoted above in her objection to the charge in the district court and o n appeal, runs more like an argument in favor of judgment as a matter of law that the City did not take adequate r emedial
action once it learned of the harassment than a cha llenge to a jury instruction. Robinson did not move for su ch a judgment, however, and it is plain that no such jud gment
would have been warranted in view of the evidentiar y disputes regarding whether the harassment occurred and when the City found out about it. As the district c ourt put it, "it's the jury's job to decide whether [the Cit y's antiharassment procedure] was effective or not." We rej ect Robinson's argument that the Bouton charge was inappropriate on the facts of her case, because it was for the jury in its verdict, not the court in its charg e, to decide
what the facts of this case were.20

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20. After the trial in this case, we decided Knabe v. The Boury Corp.

, ___ F.3d ____, 1997 Wl 282905 (3d Cir.). As noted above , in Bouton we articulated the standard as whether the employer's remedial action was
"effective." See 29 F.3d at 107. In Andrews , we phrased the standard somewhat differently, stating that the employer wil l be liable if its remedial action was not "adequate." See 895 F.2d at 1486. If there was any conflict between the "adequacy" standard expres sed in Andrews and
the "effectiveness" standard set forth in Bouton , Knabe has resolved it. In
Knabe , we rejected the plaintiff's argument that an empl oyer is liable unless it took remedial action that was actually "e ffective" to put a stop to the harassment in the particular case at hand. W e held instead that a remedial action is "adequate" if it was "reasonab ly calculated to prevent further harassment," whether or not it actu ally succeeded in doing so. Id . at __, *5 (citations omitted). See also id . at __, *4 n.8. Therefore, the charge in this case arguably misled the jury into believing that the City's response had to be actually effecti ve. Of course, in view of the jury's verdict for the City, no prejudice fl owed from this possible

error.

31VII.

After the district court granted defendants' motion for judgment as a matter of law on Robinson's quid pro quo harassment and retaliation claims, defendants' coun sel
asked the court to remove from the record certain e xhibits
that "were offered with relation to those claims." (App. 1307). The court then went through the exhibits in question with counsel and excluded all but two of t hem. (App. 1308-13) Later, in charging the jury, the cou rt listed the claims that it had "disposed of" and told the j ury that "these claims are of no concern to you. The evidenc e you heard concerning these claims is no longer relevant and should not be considered by you." (App. 1326) On ap peal, Robinson argues that these evidentiary rulings and this statement were erroneous because evidence of quid p ro quo harassment and retaliation, even if it does not con cern conduct that is serious enough to be independently actionable on a quid pro quo or a retaliation theor y, may nevertheless be relevant to show a hostile work environment. These errors, she submits, require rev ersal of the jury's verdict in favor of the City on her Titl e VII hostile
environment claim.

We need not consider this argument, because we do n ot
believe that Robinson raised it in the district cou rt. Fed. R. Civ. P. 46 requires "that a party, at the time the ruling or order of the court is made or sought, make[ ] known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefor." We conclude that, while Robinson may have made a timely objection to the evidentiary exc lusions that she contests, she at no time made known to the district court the ground that she now presses in t his

court.

As noted, the court analyzed each exhibit that defe ndants sought to exclude. For most of the exhibits mention ed during that process, plaintiffs' counsel voiced no objection, and neither of the two objections that he did raise related to the argument described above upon which Robinson now relies. First, plaintiffs' counsel objected to the exclusion of exhibit 57-X, arguing that it was relevant to under mine the credibility of a witness named Gail Payne by showin g "her

32motive in giving testimony the way she did and what she said." (App. 1308) The court disagreed, and removed the exhibit from the record. Next, counsel argued that exhibit 78 was relevant to show that the City's response to Robinson's complaint of harassment was ineffective. (App. 1310) The court disagreed, stating that the exhibit only "has to do with retaliation." (App. 1311) Robinson does not renew either of these objections on appeal. After t he court and counsel had gone through all of the exhibits at issue, plaintiffs' counsel stated that "[t]o make the reco rd clear, Your Honor, I would just like to for the record, to formally object to the Court's ruling based on the Bouton case and the evidentiary rulings you just made." (App. 1315) Counsel offered no further explanation of the grounds for t his objection.

Subsequently, in charging the jury, the court made the statement quoted above that Robinson now challenges

. After completing the jury charge, the court told co unsel at sidebar that "[n]ow is your opportunity to put exce ptions to the charge on record." (App. 1348) Plaintiffs' coun sel did not mention the challenged statement, and did not otherwise make known the argument that Robinson now makes on appeal.

We therefore conclude that plaintiffs' counsel neve r gave the district court any reason to believe that he wa s making the argument that evidence of quid pro quo harassme nt and retaliation, even if not actionable on those th eories,
was nevertheless relevant to show a hostile work
environment. Because Robinson did not raise that argument in the district court, we decline to consi der it on appeal.21

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21. Robinson argues that the court erred in refusin g to allow her to present evidence that the City transferred officers to the detective bureau on the basis of nepotism and favoritism, in violati on of its written policies. We find no error in the district court's ruling that the proffered evidence could not give rise to a reasonable infere nce of discrimination because of sex. Finally, Robinson challenges the co urt's refusal to admit the report prepared by the City's Office of Profess ional Responsibility
that found that Dickerson had created an "uncomfort able" work
environment for another woman. The court allowed Ro binson to elicit the

33VIII.

For the reasons stated in this opinion, we affirm t he district court's grant of defendants' motion for ju dgment as a matter of law with respect to Robinson's claims u nder § 1983 against Buford, Edwards, and the City for se x discrimination and retaliation and Robinson's claim under Title VII against the City for retaliation. We reve rse the grant of judgment as a matter of law with respect t o Robinson's claim under Title VII for quid pro quo s exual harassment against the City and remand for trial of that claim. On remand, the district court should ascerta in whether Robinson seeks to pursue a claim under § 19 83 for quid pro quo harassment against Dickerson, and if s o, whether she should be permitted to do so in light o f the prior proceedings in this case. See n.14, supra . In all other respects, we affirm the district court's rulings an d its entry of judgment upon the jury's verdict.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

___________________________________________________ ______________

report's conclusions as admissions by the City, but excluded the report
itself as irrelevant. Robinson contends that the re port shows notice to the City of Dickerson's alleged harassment of her. We find no error here as well. The conduct on the part of Dickerson discu ssed in the report is not his alleged harassment of Robinson, so the repo rt in no way put the City on notice that Dickerson was harassing Robinso n.

34